Citation Nr: 0615571
Decision Date: 05/26/06 Archive Date: 06/06/06
DOCKET NO. 95-00 113A ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Roanoke, Virginia
THE ISSUES
1. Entitlement to service connection for a respiratory
disorder, claimed as the residuals of sinus/nasal surgery.
2. Entitlement to a rating in excess of 30 percent for the
service-connected migraine headaches.
REPRESENTATION
Appellant represented by: Mark R. Lippman, Attorney
ATTORNEY FOR THE BOARD
Harold A. Beach, Counsel
INTRODUCTION
The veteran served on active duty from December 1986 to
January 1987 and from October 1990 to September 1992.
This case was previously before the Board of Veterans'
Appeals (Board) in November 2004, at which time it was
remanded for further development.
FINDINGS OF FACT
1. The veteran's pre-existing sinusitis is shown as likely
as not to have increased in severity beyond natural progress
during his second period of service.
2. The service-connected migraine headaches are shown to
occur several times a week, but are not prostrating in nature
or productive of severe economic inadaptability.
CONCLUSIONS OF LAW
1. By extending the benefit of the doubt to the veteran, his
pre-existing respiratory disability manifested by sinusitis
was aggravated by service. 38 U.S.C.A. §§ 1110, 1153, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303
(2005).
2. The criteria for the assignment of a rating in excess of
30 percent for the service-connected migraine headaches have
not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002);
38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.118 including Diagnostic
Code 8100 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Assist
Prior to consideration of the merits of the veteran's appeal,
the Board must determine whether VA has met its statutory
duty to assist the veteran in the development of his claims
of entitlement to service connection for disabilities of the
left ankle, left knee, and back. 38 U.S.C.A. §§ 5103, 5103A;
38 C.F.R. § 3.159.
In letters, dated in January 2003, and February 2005, the RO
informed the veteran that in order to establish service
connection for respiratory disability, there had to be
competent evidence of current disability (generally, a
medical diagnosis), of incurrence or aggravation of a disease
or injury in service (lay or medical evidence), and of a
nexus between the in-service injury or disease and the
current disability (medical evidence). Caluza v. Brown, 7
Vet. App. 498, 506 (1995).
In determining whether an increased rating was warranted for
the veteran's migraine headaches, the RO stated that there
has to be competent evidence that his service-connected
disability had gotten worse.
The RO notified the veteran and his representative of the
following: (1) the information and evidence not of record
that was necessary to substantiate the veteran's claims; (2)
the information and evidence that VA would seek to provide,
such as records held by Federal agencies; (3) the information
and evidence that the veteran needed to provide, such as
employment records and records of his treatment by private
health care providers; and (4) the need to furnish VA any
other information or evidence in the veteran's possession
that pertained to his claims. See Quartuccio v. Principi,
16 Vet. App. 183 (2002).
However, the RO stated that it was ultimately the veteran's
responsibility to make sure that it received all of the
requested records which weren't in possession of the Federal
government.
The RO told the veteran where to send the
information/evidence and set forth time frames for doing so,
as well as the potential consequences for failing to do so.
It also notified him of what to do if he had questions or
needed assistance and provided a telephone number, computer
site, and address where he could get additional information.
Generally, the notice required by 38 U.S.C.A. § 5103(a), must
be provided to a claimant before the initial unfavorable
agency of original jurisdiction (AOJ) decision on a claim for
VA benefits. Pelegrini v. Principi, 18 Vet. Appl 112 (2004).
In this case, however, the notice with respect to the claims
of service connection for respiratory disability and for an
increased rating for his migraine headaches was not sent to
the veteran until after the rating decision in June 1994.
Nevertheless, any defect with respect to the timing of that
notice was harmless.
Indeed, the foregoing notices complied with the requirements
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which
held that the VA notice requirements of 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b) apply to all five elements of a
service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability.
The Court held that upon receipt of an application for a
service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Dingess/Hartman,
slip op. at 14. Additionally, this notice must include
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded. Id.
As noted hereinabove, the veteran was provided with notice of
what type of information and evidence was needed to
substantiate his claims for service connection and increased
ratings. However, he was not provided with notice of the
type of evidence necessary to establish the degree of
disability or the effective date should service connection be
granted for a respiratory disorder. Moreover, he was not
provided with notice of the type of evidence necessary to
establish the effective date should an increased rating be
granted for the veteran's migraine headaches.
Despite the inadequate notice provided to the veteran on the
degree of disability and effective date elements, the Board
finds no prejudice to the veteran in proceeding with the
issuance of a final decision. See Bernard v. Brown, 4 Vet.
App. 384, 394 (1993) (where the Board addresses a question
that has not been addressed by the agency of original
jurisdiction, the Board must consider whether the veteran has
been prejudiced thereby).
Indeed, since the following decision grants service
connection for respiratory disability, the RO will be
responsible for addressing any notice defect with respect to
the rating and effective date elements when effectuating the
award.
Moreover, since the increased rating claim is being denied,
no effective date will be assigned. Therefore, there can be
no possibility of any prejudice to the veteran.
After reviewing the record, the Board finds that VA has met
its duty to assist the veteran in the development of evidence
necessary to support his claims. It appears that all
relevant evidence identified by the veteran has been obtained
and associated with the claims folder. In this regard, he
has not identified any further outstanding evidence (that has
not been sought by VA), which could be used to support any of
his claims.
Given the efforts by the RO to develop the record, there is
no reasonable possibility that further development would lead
to any additional relevant evidence with respect any issue on
appeal.
As such, there is no prejudice to the veteran due to a
failure to assist him with the claim of service connection or
the claim for increase. See Mayfield v. Nicholson, 19 Vet.
App. 103 (2005) (discussing prejudicial error).
Therefore, further action is unnecessary in order to meet
VA's statutory duty to assist the veteran in the development
of those claims. See, e.g., Sabonis v. Brown, 6 Vet. App.
426, 430 (1994) (remands that would only result in
unnecessarily imposing additional burdens on VA with no
benefit flowing to the appellant are to be avoided).
Accordingly, the Board will proceed to the merits of the
appeal.
II. Facts and Analysis
A. Service Connection for Respiratory Disability
Service connection connotes many factors, but basically, it
means that the facts, shown by the evidence, established that
a particular disease or injury resulting in disability was
incurred coincident with active military, naval, or air
service, or, if preexisting such service, was aggravated
therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
A review of the record discloses that, during his brief first
period of active duty, the veteran was found to have septal
deviation with severe airway restriction. The Entrance
Physical Standards Board Proceedings revealed that this
condition had existed prior to service and that the veteran
had not met the medical fitness standards for enlistment.
Accordingly, he was given a discharge with instructions to
have no military service prior to repair of his septum.
In March 1987, following this period of active service, the
veteran underwent septoplasty to repair his septal deviation.
This surgery was noted on the medical history report
completed in conjunction with his May 1990 service entrance
examination. The veteran also reported having a history of
asthma. He indicated that he did not know if he then had or
had ever had sinusitis. Although he reported that he still
had occasional nasal obstruction, the examiner found that the
nose and sinuses were normal.
During service, in April and May 1991, the veteran complained
of having sinus pressure, and the various diagnoses included
those of sinusitis, rhinosinusitis and vasomotor rhinitis.
The X-ray studies were variously reported as clear or
revealing nasal congestion and questionable mild mucosal
thickening of the lateral wall of the maxillary sinuses.
In June 1991, the veteran was found to have enlarged
turbinates associated with his vasomotor rhinitis and
underwent corrective surgery.
Since service, the veteran has complained of other
respiratory difficulty. During VA treatment from October
2000 to February 2003, it was noted that the veteran's
medical problems included asthma, for which he was reportedly
followed at a VA Pulmonary clinic.
Thereafter, the veteran was examined extensively by VA, in
part, to determine the nature and etiology of his respiratory
problems. Indeed, in April, August, and October 2003, the
veteran underwent VA otolaryngology examinations.
During the April 2003 VA examination, it was noted that the
veteran had undergone six surgeries on his sinuses, the last
in 2001. The impression was that of chronic sinusitis.
During the August 2003 examination, it was noted that the
inferior turbinates were boggy. Consequently, the examiner
scheduled the veteran for a CT scan of the sinuses.
The CT scan, performed by VA in October 2003, revealed that
the veteran had mild sinus disease with a small amount of
fluid in the right frontal sinus, mucosal thickening of the
some air cells in the right ethmoid sinus, focal soft tissue
density in the left maxillary ostium and focal mucosal
thickening of the right sphenoid sinus. The most prominent
changes were seen in the region of the right frontal sinus
and anterior right ethmoid sinus.
Following the VA otolaryngology examination, later in October
2003, the examiner stated that the veteran had significant
nasal obstruction due to left septal deviation. The relevant
impression was that of nasal obstruction exacerbating
migraines. It was noted that the veteran was being treated
medically for sinus congestion.
In November 2003, the Chief of the Compensation and Pension
at a VA Medical Center reviewed the veteran's claims folder.
Following that review, she found that the veteran's turbinate
hypertrophy noted in January 1987 was a pre-existing
condition and that the veteran had had septal deviation and
airway obstruction since childhood.
Therefore, the VA physician concluded that the current nasal
disability did not originate during the veteran's periods of
active service. She further concluded that it was "not at
least as likely as not" that any currently demonstrated
nasal disability was related to the veteran's March 1987
septal repair or was caused or worsened by the ameliorative
nasal surgery performed during service in May 1991.
Although the record demonstrates a preservice history of
septal deviation and turbinate hypertrophy, a careful review
of the record shows that manifestations of turbinate
enlargement consist with recurrent sinus disease were again
manifested during his second period of service.
Given the veteran underwent additional surgery in order to
ameliorate the pre-existing sinus condition, the Board finds
the evidence to be in relative equipoise in showing that the
pre-existing sinusitis as likely as not underwent an increase
in severity beyond natural progress during this second period
of active service.
By extending the benefit of the doubt to the veteran, service
connection for sinusitis is warranted.
B. Increased Rating for Migraine Headaches
Disability evaluations are determined by comparing the
manifestations of a particular disability with the criteria
set forth in the DC's of the Schedule for Rating
Disabilities. 38 U.S.C.A. 1155; 38 C.F.R. Part 4 (2003).
Headaches are rated in accordance with 38 C.F.R. § 4.124a, DC
8100. A 30 percent rating is warranted for headaches,
manifested by characteristic prostrating attacks occurring on
an average once a month over last several months.
A 50 percent rating is warranted for service-connected
headaches that are very frequent and completely prostrating
and subject to prolonged attacks productive of severe
economic inadaptability.
The percentage ratings represent, as far as can practicably
be determined, the average impairment in earning capacity (in
civilian occupations) resulting from service-connected
disability. 38 C.F.R. § 4.1.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
In accordance with 38 C.F.R. §§ 4.1 and 4.2 and Schafrath v.
Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all
evidence of record pertaining to the history of the veteran's
service-connected disability. Where, as here, entitlement to
compensation has already been established and an increase in
the disability rating is at issue, the present (current
rating period) level of disability is of primary concern.
Although the recorded history of a disability is for
consideration in order to make a more accurate evaluation,
see 38 C.F.R. § 4.2, the regulations do not give past medical
reports precedence over current findings. Francisco v.
Brown, 7 Vet. App. 55 (1994).
In this case, evidence such as the reports of VA neurologic
examinations, performed in September 1993 and March 2003,
show that the veteran reports having as many as four episodes
a week. He notes that they are diminished by avoiding light,
lying down and minimizing his stress.
Despite those manifestations, there is no competent evidence
of record that the veteran's headaches are prolonged and
completely prostrating in nature or cause severe economic
inadaptability.
Indeed, the veteran has led a rather active lifestyle,
working long hours as a truck driver and firefighter.
Moreover, he has also been able to pursue recreational
interests and other activities despite his headaches.
Therefore, the Board finds that the service-connected
headaches are not manifested by symptoms that warrant the
assignment of a rating higher than the currently assigned 30
percent under Diagnostic Code 8100.
In arriving at this decision, the Board notes that, in its
February 2005 letter, the RO requested additional
evidence/information with respect to specific health care
providers who recently treated the veteran for headaches.
The RO also requested records associated with the veteran's
employment since service. However, the veteran did not
respond to those requests.
ORDER
Service connection for respiratory disability manifested by
sinusitis is granted.
A rating in excess of 30 percent for the service-connected
migraine headaches is denied.
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs